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Name: People v. Davis
Case #: A131764
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 03/28/2013

The Second Amendment does not protect the right of a defendant to possess a “billy.” Appellant was convicted of illegal possession of a billy (former Pen. Code, § 12020, subd. (a)) based on his possession of a modified baseball bat, which he carried in his car. On appeal, defendant raised a number of statutory and constitutional challenges to his conviction. Held: Affirmed. Davis claimed that if former section 12020, subdivision (a)(1) is held to bar his possession of a baseball bat as a prohibited billy, it violates the Second Amendment, citing District of Columbia v. Heller (2008) 554 U.S. 570 and McDonald v. City of Chicago (2010) __ U.S. __ [130 S.Ct. 3020]. Without deciding whether the statute would be unconstitutional if the bat were possessed in the home, the court noted that Davis carried the bat in his car and told officers it was for self-defense. The Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” The Legislature decides what weapons meet this definition. When it enacted former section 12020, the Legislature intended to outlaw instruments that are normally used for criminal purposes. As a result, a billy falls outside the protection of the Second Amendment.

Modified baseball bat was properly found to be a billy. Davis claimed the bat was not a billy, which was historically defined as a short, small and easily concealed weapon. However, an object with an innocent use may constitute a weapon under former section 12020, subdivision (a)(1) if, based on the circumstances of possession, it is possessed as a weapon. Here, the bat had been modified in a way that made it more useful as a weapon and Davis admitted he needed it for protection. Thus, the jury reasonably found it was a billy.

The court did not err in failing to define billy for the jury. The court gave CALCRIM No. 2500 regarding unlawful possession of a weapon. Davis claimed it was error not to define billy as a short or small object. This issue was waived by trial defense counsel, who felt it better to give the standard CALCRIM instruction. Further, as expert testimony was given on the matter, no further definition was necessary.